Divorce is hard enough, but it’s even harder when you are an expat. There are many things to keep in mind and many rules to adhere to. Make sure you are well prepared, so you can avoid irreversible damage.
When you have a dependent residence permit to stay with your expat partner/spouse, you need to be aware that you can lose your permit when you start a divorce procedure or when you move to a separate address.
You are required to inform the IND when your relationship is over. The IND will then start a procedure to have your residence permit revoked. Therefore, it is important to find out if you are eligible to get a different type of residence permit.
If you have children together, you can apply for a residence permit according to article 8 of the ECRM, based on the fact that you have created a family life here with your children.
If you have a job or a business you might be eligible for an independent residence permit as an employee/knowledge migrant or as an entrepreneur.
It is useful to contact a specialised immigration lawyer who can advise you on whether you meet the requirements to apply for a different type of residence permit or naturalisation.
If you have children, where will they go after the divorce? Who will make decisions about the children, and who will have parental authority after the divorce?
According to Dutch law, both parents will keep their parental authority after the divorce. Parents are required to make a parenting plan when submitting a petition for divorce. In the parenting plan, a number of issues are settled, such as:
› Where the children will be staying. With their father or their mother? Where will their main residence be?
› How much child support will be paid and by whom?
› What the access arrangement will look like.
If you are not married, the father can obtain parental authority by requesting it with an official form (in Dutch: aantekening in het gezagsregister) with the consent of the mother.
If the mother does not give her consent for shared parental authority, the father can file a petition at the district court. If the parents have foreign nationalities and the child was born outside of the Netherlands, foreign law may be applicable to determine who has parental authority.
If you would like to relocate with your child(ren), for example, back to your home country, you need the permission of the other parent who has parental authority. Without having his/her consent to relocate, you can ask the court for a replacement permission.
The court will look at the all the given circumstances and investigate which country will suit the child best. If you have an older child who is settled in the Netherlands (who is going to school and has a social life here), it will be difficult to get permission from the court.
The distance between the parents after moving is a relevant factor as well. According to the International Convention on the Rights of the Child, the child is entitled to have frequent contact with both parents.
If there is a distance between the parents, it will affect the frequency to be able to have physical contact with the child. Moreover, it can be a burden for the child to have to travel between his/her parents.
Please bear in mind that before starting a divorce procedure in the Netherlands, you need to take care of the registration of your foreign marriage certificate, which needs to be legalised or apostilled.
Also, the Dutch divorce decree itself will be registered in the database of The Hague’s Registry Office, which takes care of the registration of international marriages and divorces, in case of an international divorce.
Please check what kind of marital property regime is applicable. When starting a divorce procedure, you can ask the court for a division of community property.
Depending on whether you have joint nationality and where your first joint place of residence was after marriage, the court will decide which legal system will be applicable to the matrimonial property regime.
Furthermore, it can be useful to put a choice of law or court clause in a prenuptial agreement by a Dutch notary.
If Dutch law is applicable to the matrimonial property regime, all assets and liabilities will fall under community of property, including the ones gained before the marriage.
A new law regarding the Dutch matrimonial regime was passed on 28 March 2017, but this law only affects couples married after the date of implementation of this law.
Are you (thinking of) getting a divorce? The specialised attorneys at Franssen Advocaten can assist you with matters regarding immigration law, international divorces and other kinds of (international) family law issues.
To find out more please contact them via:
› Telephone: +31 20 66 319 66
› Email: info@franssenadvocaten.nl